ANASTASIOS JEANNIDIS VS. DAVID DE CLEMENT (L-1575-16, GLOUCESTER COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1381-18T3
ANASTASIOS JEANNIDIS,
Plaintiff-Appellant,
v.
DAVID DE CLEMENT,
Defendant-Respondent.
Argued telephonically June 24, 2020 –
Decided July 17, 2020
Before Judges Accurso and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Docket No. L-
1575-16.
Anastasios Jeannidis, appellant, argued the cause pro
se.
John T. Ambrosio argued the cause for respondent
(Ambrosio & Associates, LLC, attorneys; John T.
Ambrosio, on the brief).
PER CURIAM
Anastasios Jeannidis appeals from a September 14, 2018 order
dismissing his complaint against attorney David De Clement with prejudice for
failure to comply with the Affidavit of Merit statute, N.J.S.A. 2A:53A-26
to -29, and an October 26, 2018 order denying his motion for reconsideration.
Because plaintiff failed to file his affidavit within the extended 120-day period
permitted by statute, we affirm.
Plaintiff filed his complaint for legal malpractice and breach of fiduciary
duty in late 2016, alleging defendant made distributions from his attorney trust
account prior to a third-party having posted a standby letter of credit as agreed.
Plaintiff apparently had difficulty serving the complaint, and service was only
accomplished after plaintiff obtained an order for substituted service in
December 2017. Following the denial of defendant's motion to dismiss, he
filed an answer on April 9, 2018, including a five-day demand for a statement
of damages pursuant to Rule 4:5-2 and a sixty-day demand for an affidavit of
merit.
Plaintiff responded with a statement of damages, but failed to file an
affidavit of merit within sixty days of defendant's answer. On June 12, 2018,
defendant's counsel wrote to plaintiff, who is self-represented, advising that
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his affidavit of merit was overdue, and if not received within seven days that
defendant would file a motion to dismiss the case with prejudice.
Defendant filed a motion to dismiss for plaintiff's failure to comply with
the statute on August 1, 2018. Judge Chell granted the motion on September
14, finding the affidavit plaintiff tendered on September 13 was untimely, even
had plaintiff requested and received a permitted sixty-day extension, which he
had not done.
Plaintiff moved for reconsideration, contending the court had failed to
consider the affidavit of merit he filed with the court on September 13, that he
had demonstrated excusable neglect for not serving the affidavit sooner, and
that the drastic sanction of dismissal was not warranted. Judge Chell denied
the motion. He explained he had considered the affidavit submitted but found
it was filed beyond the time permitted by statute and that none of the
established exceptions excusing compliance applied, mandating dismissal of
the complaint.
Plaintiff appeals, contending the trial court erred in dismissing his
complaint "for late filing of the affidavit of merit," and, even if the affidavit
was late, "the trial court committed reversible error in not accepting it."
Specifically, plaintiff contends defendant filed his answer after the case had
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been dismissed. He argues it should therefore "be considered a nullity and no
procedural time limits should 'run' therefrom."
Although plaintiff asserts his case was dismissed on March 29, 2018, he
points to nothing in the record to establish that fact, and we find nothing to
suggest it. Defendant claims he only filed his answer on April 9, 2018, after
his initial motion to dismiss was denied ten days earlier and the record reflects
that plaintiff responded to the request for a statement of damages in
defendant's answer on April 25, 2018. Accordingly, we reject his contention
that his sixty-day period for filing an affidavit of merit never began.
There is no question here but that plaintiff sued defendant for legal
malpractice, thus requiring the filing of an affidavit of merit. See N.J.S.A.
2A:53A-27. Plaintiff does not argue otherwise. Although there was no
Ferreira1 conference held, for reasons not explained on the record, it has been
the law for a decade that "reliance on the scheduling of a Ferreira conference
to avoid the strictures of the Affidavit of Merit statute is entirely unwarranted
and will not serve to toll the statutory time frames." Paragon Contractors, Inc.
v. Peachtree Condo. Ass'n, 202 N.J. 415, 426 (2010). Defendant advised
1
Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003).
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plaintiff of the statutory requirement for an affidavit of merit in the answer and
again wrote to him at the sixty-day mark to note the affidavit was overdue.
Because we agree with Judge Chell that plaintiff has not presented
extraordinary circumstances to excuse his failure to timely file an affi davit of
merit, see A.T. v. Cohen, 231 N.J. 337, 348 (2017), we need not consider
defendant's alternative grounds that the affidavit of merit plaintiff belatedly
presented, drafted by a New York attorney who had not read the complaint,
would not pass muster under the statute, and that defendant's client was
plaintiff's corporation and not plaintiff.
Affirmed.
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